In Gäfgen v Germany the majority of a Chamber of the European Court of Human Rights affirmed that police threats to torture suspects always violate Article 3 of the European Convention on Human Rights, but that in certain circumstances such as those presented by this case, charging and convicting but leniently punishing the officers concerned provides adequate redress. A majority of the Grand Chamber held that, on the contrary, such violations should always be severely punished even when motivated, as here, by the urgent imperative of rescuing a kidnapped child. This article argues that, on Article 3, the majority of the Chamber reached the right result but not entirely for the right reasons, while the judgment of the majority of the Grand Chamber is methodologically, substantively and morally flawed. Having explored the central underlying normative dilemma neglected by all judges on both panels—how should conflicts between two competing instances of the same ‘absolute’ human right be resolved?—it concludes that, in such circumstances, courts have no legitimate alternative but to make a moral rather than a legal choice taking fully into consideration what is at stake for both parties in the widest possible senses. The verdict of the majorities on both panels that there was no violation of the applicant’s right to a fair trial is also defended, and the issues raised by the Gäfgen case are contrasted with the much-debated ‘ticking bomb’ scenario with which it is easily but mistakenly confused.

* Nicolas A. J. Croquet, 'The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence?'

The International Criminal Court (ICC) has been a mirror of the European Court of Human Rights when defining the scope of defence rights and limiting their exercise on public interest grounds. The ICC has been consistently deferential to the Strasbourg Court in the interpretation of the accused’s rights to disclosure of evidence and to cross-examine prosecution witnesses, leaving the door open for a virtual theory of implied external limitations upon defence rights. The ICC has nevertheless failed to provide a rationale, besides its non-systematic reference to the ICC Statute’s human rights enabling clause, when cross-fertilising with the Strasbourg Court. The latter has not only exerted influence over other international human rights monitoring bodies but also accounted for judicial developments within domestic and international fora when tailoring its own human rights standards. The ICC has overall proven to be a promising platform for extrapolating regional interpretations of fair trial rights to the international legal order.